Travelling with a Criminal Record

Your ability to travel to other countries while you have a criminal record will depend upon the policies of the country you wish to travel to. Depending on the country you wish to travel to, there are various factors may impact your ability to travel, including;

• The criminal offences which you have been convicted for.
• The length of time since your last criminal conviction.
• The sentence you receive for any criminal offences you were convicted of.

Travelling to Europe with a Criminal Record

Travelling with a criminal record to Europe is generally easier than trying to travel to the United States with a criminal record. If you are traveling for 90 days or less you are not required to apply for a visa, and it is unlikely that you will be asked about a criminal record when you enter. Many countries in Europe are part of the European Union and you are permitted from travelling from one country to another without going through customs, which means you should not have a problem travelling with a criminal record once you have gained entry into one of these countries.

If you are travelling for more than 90 days, you will be required to apply for a visa. When you apply for a visa, most countries will ask whether you have any criminal convictions. Depending upon the country and your criminal record, you may be denied a visa. However, minor criminal offences will generally not prevent you from obtaining a visa if you plan to stay longer than 90 days. If you are applying for a visa you should check with the country you will be travelling to about whether you might be denied entry.

Travelling to the United Kingdom with a Criminal Record

Although part of Europe, travelling with a criminal record to the United Kingdom can be much more difficult than travelling to other countries in Europe. If you are travelling with a criminal record, the United Kingdom will determine whether you conviction has been “spent”. The term spent essentially means whether enough time has passed that you are now considered rehabilitated. While there is information available online regarding how much time must have passed before your criminal record is spent, you should contact the appropriate officials in the United Kingdom to determine whether you may be denied entry based upon a prior criminal conviction.

Travelling to the United States with a Criminal Record

Travelling with a criminal record to the United States can be difficult. The United States will not permit a person to enter the country if that person has been convicted of a crime of moral turpitude. While there is no standard definition of a crime of moral turpitude, it is generally understood to mean a crime that offends the community’s standards of morality and honesty.

Many, but not all criminal offences are considered by the United States to be crimes of moral turpitude. While there is no exhaustive list of what exactly the United States considers to be crimes of moral turpitude, the following are some examples of criminal offences that may prevent you from travelling to the United States;

• Murder or Manslaughter
• Sexual Assault
• Aggravated Assault
• Possession for the Purpose of Trafficking or Trafficking a Controlled Substance
• Any involvement in Terrorism-related offences
• Theft
• Robbery
• Bribery
• Forgery
• Fraud

Some examples of criminal offences which are generally not considered crimes of moral turpitude by the United States are;

• Simple Assault
• Mischief
• Impaired Driving
• Break and Enter

However, where you have more than one conviction for any of these offences, you could be denied entry into the country. Even if you were convicted for a crime of moral turpitude many years ago, you can still be denied entry into the United States.

While you can apply to the United States Customs and Border Protection for a temporary waiver of inadmissibility, there is no guarantee that you application will be allowed. An application for a temporary waiver of inadmissibility is expensive, and you can expect to pay about $585. The application process can also take up to a year, so you will need to have your trip planned out well in advance.

Neither a pardon nor a criminal record suspension in Canada is recognized by the United States. United States Customs can access records held with the Canadian Police Information Centre (CPIC), and once Customs has been alerted to your criminal record, your criminal record may be kept in U.S. databases and will not be removed even if you receive a criminal record suspension. This is why it is important to obtain a criminal record suspension prior to attempting to travel to the United States.

Even if you do not have a criminal conviction but you have been before our criminal courts (i.e. you received a peace bond, a discharge, the charges against you were withdrawn or you were found not guilty) you should consider waiting until these records are removed from CPIC. Record of peace bonds and discharges are automatically removed from  after a period of time.

Contact

Contact me today if you have any concerns about travelling with a criminal record.

Follow the link for more information on Criminal Record Suspensions.

Shoplifting Fines

Shoplifting in Canada is not a separate criminal offence; rather it falls under the offence of theft. Most individuals caught shoplifting are charged by the police with either theft under $5,000 or theft over $5,000. Criminal charges relating to allegations of shoplifting for a first-time offender are often dealt with through diversion, and usually involve making a donation to a recognized charity. However, there are some circumstances where the police will exercise their discretion not to lay charges, or the security employees for the retail store will elect not to contact the police. What then?

Civil Recovery Letters

Well don’t be surprised if you get a letter in the mail a few weeks later demanding that you pay a fine. The letter will usually be addressed from a lawyer on behalf of the security or loss prevention company that was employed by the retail store. These letters are referred to as “civil recovery letters” and the reason for the fine is for companies to cover the costs of hiring private security to prevent shoplifting and catch those individuals attempting to steal merchandise. The fine usually ranges from $400 to $600 and you will be given a few weeks to pay the fine. The letter will may also indicate that if you do not pay the fine, a civil claim will be brought against you in Small Claims Court for the amount of the fine, plus interest and legal costs.

Do I have to Pay the Fine?

The simple answer is no. There is no court order requiring you to pay the fine. There is also no law that requires that you pay the fine. The hope is that you will receive this letter and simply agree to pay the amount of the fine. It is likely that many individuals pay the fine out of fear. Other individuals may pay the fine because they feel fortunate enough not to be charged with theft. Still, there may be others that may pay the fine because they view it as cheaper than having to hire a lawyer to fight it.

Can these companies seek to recover the expenses involved with shoplifting and preventing shoplifting? While there is no legal requirement on your part to pay the fine indicated in the letter, companies can bring a civil action in Small Claims Court. However, these claims are often not pursued, as it is simply not cost-effective to bring a claim. The leading decision regarding these civil recovery letters is Hudson’s Bay Company v. David James White [1998] O.J. No. 2383 (Ont. Div. Ct.). In that case the defendant was alleged to have stolen women’s gloves valued at approximately $200. The Hudson’s Bay Company put forward a claim for $2,000 for damages, but was only awarded $100, which was increased to $300 on appeal.

What should I do if get a Shoplifting Fine?

You should consider speaking with a lawyer about a shoplifting fine. A lawyer will be in the best position to advise you what your legal options are, and what is the best way to proceed based upon the facts relating to the alleged shoplifting.

Contact

Contact me today if you have been charged with theft or you have received a civil recover letter relating to a shoplifting event.

See FAQs on Theft.

Read more about diversion or theft.

Here is a link to an article by the CBC regarding shoplifting fines.

What are Non Conviction Records?

Non conviction records can include, but are not limited to;

• Records relating criminal charges that were withdrawn, stayed or where the accused was found not guilty at trial.
• Records relating to conditional and absolute discharges.
• Records relating to any existing or prior police investigations.
• Records relating to any outstanding warrants for arrest.
• Records of any current and past probation orders or peace bonds.
• Fingerprint and Photograph records.
• Records of contact with police as a result of mental health concerns.
• Records of any other contact or involvement with the police, such as occurrence reports.

While not all records of contact or involvement are retained by police agencies, it is the discretion of the particular police agency whether they retain any of these records for future use.

The Presumption of Innocence and the Right to Security of a Person

Among the many rights and protections under the Canadian Charter of Rights and Freedoms, there is a right to security of a person and the right to presumed innocent until proven guilty. The retention of non-conviction records by police agencies can create circumstances which raise concerns regarding these rights. One such example occurs when these non-conviction records appear on police background checks.

While a criminal record check discloses any criminal conviction received by a person who has not been granted a criminal record suspension, a police background check (also referred to as a police information check) can disclose information about non-conviction records. Police background checks are not readily accessible by others unless a person consents, however many employers are now requesting prospective employees to complete a background check or consent to the employer completing one.

While the act of disclosing non conviction records does not directly undermine the presumption of innocence, disclosing these records certainly does create circumstances that could easily result in an infringement upon a person’s right to be presumed innocent. Employers may not understand non-records or may misinterpret them. Either way, a person who has had prior contact with the police and/or our criminal courts may be viewed in a different light by a prospective employer. For example, consider two prospective candidates for a job who are equally experienced and capable of preforming the job. One candidate does not have any non-conviction records while another candidate was found not guilty of an assault charge. Who do you think the employer is going to hire? Do you really think it is realistic that an employer is going to take the time to hear what the criminal charge was about when they have another equally capable and experience person wanting the job? Even if an employer is familiar with the contents of a non-conviction record, is it realistic to think that this information will not factor into an employer’s decision whether to hire that person?

Non conviction records may also threaten the security of a person, a right protected under section 7 of the Charter. Our Superior Court of Justice in J.N. v. Durham Regional Police Service 2011 ONSC 2892 commented on the impact that non-conviction records can have on a person trying to gain employment;

“On an objective basis, then, I am able to find that the Applicant’s inability to obtain employment resulting from her inability to clear the CIR is, objectively, something which would cause serious psychological impact. This accordingly is something that can affect the security of a person within the meaning of section 7 of the Charter.”

Right to Privacy

Certain non-conviction records may also violate a person’s right to privacy. One example of non-conviction records that could violate the right to privacy is fingerprint records. Anytime you are charged with a criminal offence you can expect to be fingerprinted by the police. The police will retain these fingerprint records unless you apply to have them destroyed. If the charges were withdrawn or you were found not guilty and you make an application to have your fingerprints destroyed, in nearly all circumstances your fingerprint records should be destroyed pursuant to our case law.

The Ontario Court of Appeal in R. v. Dore (2002) 162 OAC 56 held that a person has a privacy interest in fingerprint records after his/her charges have been withdrawn, stayed or he/she has been found not guilty. This privacy interest was limited to individuals with who did not have a prior criminal conviction. The Court of Appeal held that the policy of the Toronto Police Service at that time (which was to destroy fingerprint records on request except in highly exceptional circumstances) was consistent with the Charter;

“… the current police policy which in practice limits the extent of the statutorily authorized retention of the fingerprints of the non-convicted by providing that those fingerprints be destroyed on request, provides cogent evidence of where the constitutional balance is struck.”

Since the time of the Dore decision the Toronto Police Service has changed their policy on the destruction of fingerprint records. The new policy is not consistent with the Court of Appeal in decision in Dore and therefore may infringe upon a person’s right to privacy, although that has yet to be determined by our courts.

Watch for the next article on applying to have non-conviction records removed or suppressed.

Contact

If you have been charged with a criminal offence or you have a question about non-conviction records, contact me today.

Read the previous post on Police Background Checks.

There is an expectation that lawyers conduct themselves in a professional, courteous and civil manner. The practice of criminal law is no different from any other area of law. Criminal defence lawyers and Crown Attorneys have a duty to act in a professional manner whether they are interacting with each other, their clients, witnesses, Judges, Justices of the Peace, clerks, court reporters, or any other court administrative staff.

When we think of a lawyer acting in a manner that is unprofessional, discourteous, or lacking civility, we might envision a lawyer who; yells at a witness or another lawyer, misrepresents the court, lies to a client or another lawyer, or argues with the Judge or Justice of the Peace. While these actions can be very serious breaches of our duties as lawyers to act in a professional, courteous and civil manner, these types of behaviour actually rarely occur in our criminal courts.

Examples of Unprofessional Conduct

Where I have observed an apparent decline in the professional conduct of lawyers is in regards to general courtroom etiquette. The following are some specific examples of the decline in professional conduct of lawyers that I have observed recently in criminal courts throughout Toronto and the surrounding areas;

• Lawyers using their cell phones in court while waiting for their matter to be called. There was one occasion where I counted 6 lawyers using their phones to text or otherwise while waiting for their matter to be called.
• I observed one particular lawyer playing Solitaire on his/her IPad while waiting for his/her matter to be called.
• I have observed lawyers reading a newspaper, book or magazine in court while waiting for their matter to be called.
• Lawyers bringing their coffee into court prior to court commencing.
• On several occasions I have seen lawyers speaking to a matter in court while still wearing their overcoat.
• In matters where there is one or more co-accused, there have been several occasions where a lawyer arrives late for a judicial pre-trial, causing other lawyers, the Judge and the Assistant Crown Attorney to wait.
• On one occasion I observed an Assistant Crown Attorney enter a court without a tie and proceeded to speak to a matter.
• On several occasions I have observed lawyers addressing the Judge while standing with their hands in their pockets.

Although none of the above noted behaviour is ever likely to result in a lawyer appearing before the Law Society with respect to his or her conduct, it is still behaviour that reflects poorly on lawyers and the legal profession in general. Moreover this type of behaviour does not reinforce to the public that the courtroom is a formal atmosphere that requires a certain standard of professionalism. Lawyers need to be acutely aware that there are some individuals who attend court unrepresented and look to other lawyers when they do not know what to say or how to conduct themselves in court. As a lawyer, I do not want members of the public to think the standard for professional conduct is a lawyer who shows up late for a court appearance, uses his/her cell phone in court, and addresses the Court with their hands in their pockets.

Impact on Articling Students and Young Lawyers

The examples listed above also do not set a good example for younger lawyers and articling students who often have to learn about courtroom etiquette by observing how other lawyers act in court. Recently I observed an articling student question a Judge about access to justice and the efficient use of judicial resources with respect to a new courtroom procedure that had been implemented. Simply put, there were several problems with the printer in the courtroom on that particular day and there were more matters on the docket that day than usual. Sure, it was frustrating being at court longer than I had anticipated on that particular day, but I can tell you that this new procedure has significantly cut down the time a person has to wait for a probation order or a bail variation to be typed and signed. Perhaps the most concerning aspect of this conduct was that the student indicated he/she was instructed by their principal to make these comments to the Judge. Needless to say the comments of this student were not well received by the Judge, and nor should they have been.

In the past I have been fortunate enough to have been mentored and supervised by a collection of lawyers each of whom has a reputation for conducting themselves with the highest level of professionalism. Professionalism, courtesy and civility were all qualities that instructors Judge Barbara Beach, Crown Attorney James Gumpert and Defence Counsel Stan MacDonald instilled in the students who completed the Criminal Law Clinic at Dalhousie University. These same attributes were also instilled by Crown Attorneys Shauna MacDonald and Paul Carver and my articling principal Daniel McMahon.

What to look for when Hiring a Lawyer

If you should find yourself in circumstances where you require the services of a lawyer, whatever the reason may be, take note of how a lawyer conducts himself or herself during an initial consultation. A lawyer’s conduct at an initial meeting might give you some insight into that lawyer’s level of professionalism. Read more about what you should look for when hiring a lawyer.

Contact Me

If you have been charged with a criminal offence contact me immediately and arrange a free consultation.

Do you know the difference between a police background check, a criminal record check, and a vulnerable sector check? Has a prospective employer ever asked you to complete one of these personal background checks? It may shock you to find out what information could appear depending upon the search you have completed.

Police officers (local, provincial and the RCMP) in the course of their duty as law enforcement officers collect and retain all kinds of information, not just records of criminal convictions. Police agencies, at their discretion, can then decide what information they wish to store in electronic databases. The information that police agencies collect and retain can result in what is commonly referred to as “non-conviction records”. These non-conviction records can contain details with respect to any contact, direct or indirect, you may have had with the police, including but not limited to details regarding;

• Being charged with a criminal offence and the charge subsequently withdrawn.
• Being found not guilty to a criminal charge.
• Receiving an absolute of conditional discharge as a result of criminal charges against you.
• Entering into a Peace Bond.
• A complaint made against you but you are never charged with a criminal offence.
• Being a person of interest in a criminal investigation.
• Being a person under police surveillance.
• Contact with police due to event involving a mental health issue or need.

Details regarding any of the above noted circumstances may be disclosed, depending upon the personal background check that is completed. Obviously, a criminal record check is only going to disclose records of criminal convictions for summary and indictable offences. However, where you request a police background check or a vulnerable sector check, you may be surprised to find details regarding non-conviction records.

Police Background Check

The police background check is also referred to as a police information check. This background check is much more comprehensive and inclusive than a criminal record check. A police background check will search court records and local police agency databases for records of involvement or contact with the police. This search may also include non-conviction records of other local police agencies.

A police background check may reveal any outstanding charges against you or whether there are any outstanding warrants for you arrest. It will also indicate if you are subject to a peace bond, a probation order, or if you are currently on bail after being released from custody. A police background check will indicate whether you were found not guilty resulting from criminal charges, or if the Crown Attorney has withdrawn criminal charges against you. Even if you were found not criminally responsible by reason of mental disorder, this too may show up on a police background check. Records of an absolute or conditional discharge will appear on this type of background check. Finally, any complaint against you received by the police or any other information regarding contact with the police may show up on a police background check.

The extent of the information that a police agency collects and retains in police databases is dependent upon the policies and procedures of each individual police agency.

Vulnerable Sector Check

A vulnerable sector check is very similar to a police background check. Any information revealed on a police background check will likely be disclosed on a vulnerable sector check. The difference between the two personal background checks is that the vulnerable sector check will also disclose any information about sexual related offences and other violent offences for which the person has received a pardon or a criminal record suspension.

I think it is safe to say that the police are going to retain any information regarding anything to do sexual related offences, even in circumstances where a complaint is made but charges are never laid. This is particularly true if there is an allegation involving a child.

Have you been asked to complete a Police Background Check or a Vulnerable Sector Check?

In most circumstances it will be a prospective employer who will be asking that you complete some type of personal background check. There are some employers that will even request that you consent to the employer arranging to complete a background check on you. It may be wise to attend your local police agency in advance and request they complete a police background check, or a vulnerable sector check if it is anticipated you will be working with children or other individuals who would fall within the category of vulnerable persons.

If you are already aware that there are details of non-conviction records that appear on a police background check or vulnerable sector check, you ought to consider very carefully whether you wish to disclose this information. Similarly, if the employer asks that you consent to them requesting the police complete a personal background check, you should read the consent form very carefully. The employer may include a term that they will retain any personal background checks for a period of time. In circumstances where the employer is subsidiary of a larger corporation or a ministry part of a larger government body, the employer may share these records which may disqualify you from other positions in that corporation or government body.

More to Come

It is alarming how much information police agencies collect and retain. The retention and disclosure of this information raises concerns regarding the right to privacy, the presumption of innocence, the security of a person, and the implications that these non-conviction records can have on individuals.

I will follow up this article with other articles which address the implications of non-conviction records and the challenges of getting some police agencies to destroy non-conviction records.

Contact Me

Contact me today if you want to apply to have your non-conviction record destroyed or you have a question about police background checks and non-conviction records.

Click here to read the report by the Canadian Civil Liberties Association on Police Background Checks and the presumption of innocence.

Follow the link for information about applying for a criminal record suspension or entering the United States with a criminal record.

Common Law and Statutory Peace Bonds

The first thing you should know about peace bonds is that there are two kinds of peace bonds. The first kind of peace bond is pursuant to s. 810 of Criminal Code of Canada. The second type of peace bond is the common law peace bond. The significant difference between the two peace bonds is that an 810 peace bond relies upon the allegation of fear of safety based upon the informant.

What is a Peace Bond?

A peace bond is promise that you enter into with the court where you agree to abide by certain conditions. A peace bond is a court order and therefore it is enforceable. A peace bond is enforceable throughout Canada, and therefore you do not have to be in Ontario to be in violation of any of the conditions attached to your peace bond.

An amount of money, between $500 and $2000, may be attached with a peace. You will not be required to deposit the monetary amount however you may be required to pay the amount should you be found to have violated any conditions of the peace bond. The purpose of this monetary amount is to be an incentive on your part to abide by the conditions of the peace bond.

If you are the person entering into a peace bond, you will receive a copy of the peace bond at court. If you are the complainant/victim you will not receive a copy of the peace bond, however you can request the court provide you with a copy. It is important to note that if the peace bond requires that the person is not to have any contact or communication with your children, you should be giving a copy to your child’s school or daycare.

What is the Purpose of a Peace Bond?

A peace bond is designed to protect the safety of one or more persons against another. A peace bond is a preventative tool designed to stop a person from physically harming another person or causing the other person to fear for his or her safety.

It is important that you understand that although the purpose of a peace bond is protect a person and prevent any further harm coming to that person, it does not guarantee a person’s safety.

How Long does a Peace Bond Last?

A peace bond can be made for a period of up to 12 months. Once the enforcement period of the peace bond has ended, the peace bond itself automatically comes to an end. Once the peace bond comes to an end you no longer are required to abide by the conditions attached to the peace bond.

What are Common Conditions of a Peace Bond?

Some of the common conditions of a peace include;

• You keep the peace and be of good behaviour.
• You are not to have any communication, direct or indirect, with any person named in the peace bond.
• You not to attend a person’s place or residence, place of business or place of education.
• You are prohibited from possessing any weapons or firearms.

Am I Admitting I’m Guilty by Signing a Peace Bond?

Entering into a peace bond is not an admission of guilt and it will not result in a criminal record. However, there will be a record of a peace bond while it is enforceable, and if you are planning on travelling to the United States you should wait until the peace bond has ended before crossing the border.

When you enter into a peace bond what you are acknowledging to the court is that the complainant has reasonable grounds to fear for his or her safety, the safety of his or her spouse or child, or the safety of his or her property. With a peace bond the court only needs to be satisfied on a balance of probabilities that there is a reasonable fear of safety.

Who Enters into a Peace Bond?

Often peace bonds are the result of assault charges. Peace bonds are commonly used in domestic assault cases. Typically the Crown Attorney will agree to withdraw criminal charges against the accused if the person agrees to enter into a peace bond. In cases of domestic assault the Crown Attorney may also require that the accused person complete some form of anger management or make a donation to a recognized charity.

What happens if I Violate the Conditions of the Peace Bond?

It is a criminal offence for failing to comply with the conditions of your peace bond. The maximum penalty for failing to comply with a peace bond is 6 months in prison and/or a fine of $2,000.

In circumstances where you are the complainant/victim and you are aware that a person has violated his or her conditions of the peace bond, contact the police immediately.

Contact Me Today

If you have been charged with a criminal offence contact me today to arrange a free consultation.

For FAQS to other criminal topics click here.

 

Whether you have hired a lawyer or you representing yourself in a criminal matter, if you are contemplating pleading guilty then you should understand both the process for pleading guilty and sentencing before you go to court. If you have hired a lawyer or it is your intention to hire a lawyer to assist you resolving your criminal charges, a lawyer should explain to you a “Plea Comprehension Inquiry” and advise you on sentencing submissions and the powers and responsibilities a judge has. If you have chosen to represent yourself, it is nonetheless important that you understand what to expect in court that day.

It is also important that you remember that you should never plead guilty unless the following three elements are present; (1) there is a factual basis for pleading guilty, (2) the Crown Attorney can prove its case, and (3) you receive some form of consideration for entering a plea and saving the Crown Attorney from proving your guilt by having a trial.

The Plea Comprehension Inquiry

After you have advised your lawyer that you wish to plead guilty to one or more of the criminal offences you have been charged with, your lawyer should complete a plea comprehension inquiry with you. A plea comprehension inquiry involves your lawyer asking you the following line of questions;

• I understand that you wish to plead guilty to one or more of the criminal offences you are charged with?
• By pleading guilty, you are doing so voluntarily and of your own free will?
• You understand that the Crown Attorney is required to prove every element of the offence beyond a reasonable doubt, and that by pleading guilty you understand that you are not holding the Crown Attorney to this onus?
• You understand that you have a right to a trial, and that by pleading guilty you are giving up your right to have trial?
• Despite that the Crown Attorney and I can suggest a joint submission to the judge regarding the appropriate sentence, you understand that the judge is not bound by a joint submission and the judge makes the final determination of what the sentence will be?

When you are in court before a Judge of the Ontario Court of Justice or the Superior Court of Justice, you can expect that the judge will ask your lawyer if he or she has completed a plea comprehension inquiry with you. There are many judges who will even complete their own plea comprehension with you prior to accepting a guilty plea from you. There will be other judges who will be satisfied that your lawyer has completed a plea comprehension inquiry with you. Essentially, it all depends upon the judge in court on that particular day. Where the alleged offence involves drugs or alcohol, I have even seen judges who will ask the accused whether he or she has consumed any drugs or alcohol prior to attending court.

The Reading of the Facts

Once a judge has completed a plea comprehension inquiry with you or the judge is satisfied that you lawyer has done so, the judge will ask the Assistant Crown Attorney to read in the facts being alleged. Essentially, the Crown Attorney will summarize the allegations made against you, usually by reading the synopsis which is found in your initial disclosure package. In some circumstances your lawyer and the Crown Attorney may have come to an agreement that certain facts are not to be read in, while other facts are to be included.

Regardless of facts are read in by the Crown Attorney, the judge will ask you or your lawyer if those facts are correct. The reason that the judge will ask you or your lawyer whether the facts are correct is because the judge must have some basis for accepting your guilty plea. Where you indicate that the facts are not correct the judge will not be able to accept your guilty plea where you are disputing facts that are necessary in proving any of the elements of the offence. It is not unusual to see a judge refuse to accept a guilty plea from a self-represented person where it is clear that person is not prepared to acknowledge guilt but rather is merely attempting to enter a guilty plea for the purpose getting the matter over with.

Ethical Considerations for Lawyers

If you find yourself in circumstances where you want to plead guilty and notwithstanding that your lawyer has recommended against pleading guilty, the decision will always be yours to make. However, where your lawyer is aware that you are pleading guilty and there is no factual basis for doing so, he or she ethically cannot assist you in entering a guilty plea. The reason for this is that a lawyer is an officer of the court and has a duty not to misrepresent the court. Assisting you plead guilty to a set of facts your lawyer knows not to be true would constitute misrepresenting the court.

Sentencing

The most important part of sentencing that you need to understand is that the judge makes the final determination about what the sentence will be. Your lawyer and the Crown Attorney can make submissions about what the appropriate sentence should be, or they can propose a joint submission to a judge, however the judge is not bound by any submissions from your lawyer or the Crown Attorney.

Notwithstanding that the judge has the final determination on sentencing a judge will normally go along with a joint submission from your lawyer and the Crown Attorney. Generally, it is only in circumstances where the judge feels that the sentence would not be consistent with the administration of justice that he or she will not accept a joint submission.

Before the judge imposes a sentence he or she will ask you if you have anything to say, however you are not required to say anything if you do not wish to do so.

Contact

If you have been charged with a criminal offence and you are contemplating entering a guilty plea, it is strongly recommended that you consult a lawyer first. Contact me immediately to arrange a free consultation.

There is often a misconception that a youth record disappears after young person reaches the age of 18. The period of time that a youth criminal record will remain accessible is dependent upon how the criminal charges were resolved. The truth is that most youth criminal records are removed after a passage of time. However youth criminal records can permanently remain where a person is convicted of a criminal offence as an adult before the youth record is removed. There are also a few serious criminal offences where a youth record may be retained indefinitely, such as murder or manslaughter.

Youth Criminal Justice Act

Young offenders are any youths who are alleged to have committed criminal offences between the ages of 12 and 17. On conviction, youth criminal records are treated differently than if that person were to have been convicted as an adult. The Youth Criminal Justice Act (YCJA) governs youth who are charged with criminal offences. One of the goals of the YCJA is to protect the privacy rights of young offenders. One way the YCJA protects the privacy rights of young offenders is to restrict access to any records of conviction.

Youth Criminal Record

A youth record is not limited to criminal convictions. Youth records include circumstances where a youth is charged with a criminal offence but the charge is; (1) withdrawn, (2) the youth is found not guilty, (3) the charge is stayed, (4) the youth receives a discharge, or (5) the youth completes extra-judicial sanctions. Therefore, youth records can contain sentencing history, record of convictions, any charges laid against a youth, and any record of arrest.

Removing a Youth Criminal Record

You do not need to apply to have a youth criminal record removed. These records are automatically removed after a specified period of time has elapsed. Depending upon how criminal charges are resolved will determine how long a youth record a youth record will remain accessible. The waiting periods listed below are referred to as the access or open period. Simply put, during this period a youth record can be accessed by various law enforcement agencies such as the police.

The following represents when a youth record will be removed after it has been resolved;

• Where a youth is found not guilty of an offence, the youth criminal record will be removed 2 months after the appeal period has passed.
• Where the criminal charges are withdrawn, the youth criminal record will be removed 2 months after the date which the charges were withdrawn.
• Where the charges against the youth are stayed, the youth criminal record will be removed 1 year later as long as the youth has no further criminal proceedings in that 1 year.
• Where extra-judicial sanctions are completed, the youth criminal record will be removed 2 years after agreeing to accept extra-judicial sanctions.
• Where a conditional discharge is imposed, the youth criminal record is removed 3 years after the conditional discharge is imposed.
• Where an absolute discharge is imposed, the youth criminal record is removed 1 year after the discharge is imposed.
• Where a young offender is found guilty of a summary offence, the youth criminal record is removed 3 years after the sentence has been completed.
• Where a young offender is found guilty of an indictable offence, the youth criminal record is removed 5 years after the sentence has been completed.
• If a young offender is convicted of murder, manslaughter, attempted murder or aggravated assault, the youth criminal record may be retained for an indefinite period of time.

Where a young offender is found guilty of a summary or indictable offence and that young person receives another conviction as a youth, the waiting period starts again from the beginning. Where a young offender is convicted of an offence after he or she has turned 18 years old and the waiting period has not ended, then the youth record will permanently become part of that person’s adult criminal record. In these circumstances you would have to apply for a record suspension to have the youth record removed. Finally, where a young offender receives an adult sentence, the conviction becomes part of that person’s adult criminal record.

Once the waiting period has ended, the youth criminal record is removed and it should no longer be accessed by any law enforcement agency.

Contact Me Today

If you are a youth or your child has been charged with a criminal offence, contact me immediately to arrange a free 30-minute consultation.

If you have an adult criminal record, read about applying for a criminal record suspension or police record checks.

For more information about Young Offenders and the Youth Criminal Justice Act please visit the Department of Justice.

For anyone unfamiliar with the criminal justice system and how our courts operate, the first time you attend court can be both confusing and frustrating. If you have not retained a lawyer and depending on how busy the court is that day, you may be at court for a couple hours.

The following is intended to walk you through what you can expect to happen on your first court date. If you have never been to court before and you have not hired a lawyer, you should also consider reading my post on courtroom etiquette.

Attending Court on the First Date

Whether you are released from the police station or you are released after a bail hearing, you will be given a date to appear in court. Before you go to court you should check your bail papers to make sure you attend the right courtroom at the right time. Unless you retain a lawyer and sign a designation of counsel prior to this date, then you must attend court on that particular date. A designation of counsel is a document you can sign that indicates you have hired a lawyer and that your lawyer can appear on your behalf.

When you get to the courthouse you should check the court docket to make sure your name is on the list. There will usually be a court docket outside each courtroom. The court docket will indicated the person who is charged, the offence he or she has been charged with and the line number where that charge appears on the docket. If you are a youth, then your initials will appear on the court docket, not your full name. If you do not see your name on the list then you should speak with duty counsel or your lawyer.

If you fail to attend court on that date and you do not have a lawful excuse for failing to attend, a bench warrant will be issued for your arrest and you could be charged with failing to appear. You should know that there are very few lawful excuses available for not attending court. One lawful excuse may be that you are in hospital and you are physically unable to attend court.

Legal Assistance Available

If you have not retained a lawyer by your first court date, Duty Counsel should be able to assist you by advising the Court what you would like to do with your matter. Duty Counsel is a service available free of charge to provide individuals with limited legal assistance, however Duty Counsel cannot act as your lawyer. If you are charged with a criminal offence, even if it is only a very minor charge, it is strongly recommended that you retain a lawyer to represent you.

Your Options on the First Court Date

The first court appearance is an administrative court date, not a trial date. You cannot have your trial on the first court date and there will not be any complainants, witnesses or police officers present. You have two options on the first court date; (1) you can adjourn your matter for a few weeks or (2) you can advise the Court you wish to plead guilty. There are many reasons you may wish to adjourn your matter for a few weeks, including;

• To review the disclosure provided to you by the Crown Attorney.
• To retain a lawyer to represent you.
• To have an opportunity to apply for Legal Aid.
• Full disclosure is not available.
• No disclosure is available.
• To have an opportunity to have a pre-trial with the Crown Attorney.

If you have already hired a lawyer and signed a designation of counsel then your lawyer can attend court on your behalf. In these circumstances your lawyer will attend court, obtain any disclosure available, and adjourn your matter a few weeks to review the disclosure and meet with you. Your lawyer may also arrange a Crown Pre-trial prior to the next court date.

If you choose to plead guilty, the Court and the Crown Attorney may or may not be in a position to accept your guilty plea. Regardless of whether you are able to plead guilty on the first court appearance or not, your matter should be traversed to a court that can accept your plea. Most courts will often have a courtroom designated as a plea court.

When you attend the first appearance court you will be before a Justice of the Peace, who does not have the legal authority to accept your guilty plea. In order for you to plead guilty you must be brought before a Judge of the Ontario Court of Justice, and thus your matter must be traversed to a court where a Judge is presiding. If your first court appearance is at 2:15pm and the court is busy that day, there may not be enough time for your matter to be traversed to a plea court and for a Judge to hear your guilty plea. Keep in mind that when your matter is traversed to another court there is likely going to be other matters in the court that will be heard before your matter is spoken to.

The Information Session

There are some courts in Toronto, such as the Ontario Court of Justice at College Park, at 1000 Finch Avenue or at 2201 Finch Avenue that have an introductory session for people who are there for their first court date. The information session is about 5 to 10 minutes and it is run by Duty Counsel and the Assistant Crown Attorney. Essentially what happens at these courts is that an Assistant Crown Attorney and Duty Counsel will enter the court and speak with everyone as a group. Duty counsel will speak with you about what happens in court and what your options are that day. You will then receive disclosure from the Assistant Crown Attorney and you will be provided an opportunity to review it with a lawyer from the Duty Counsel office. Court usually resumes 30 to 45 minutes after the information session, at which point you will be asked by the Court how you would like to proceed with you case.

Contact Me

It is strongly recommended that you hire a lawyer before attending for your first court date. If you have been charged with a criminal offence, contact me today for a free 30-minute consultation.

For more information about you first court date and the criminal justice system you can also visit the website for the Ministry of the Attorney General.